[Congressional Record (Bound Edition), Volume 152 (2006), Part 10]
[Senate]
[Pages 13931-13933]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             GUANTANAMO BAY

  Mr. DURBIN. Mr. President, I thank my leader on the Democratic side.
  Yesterday I visited Guantanamo Bay, along with my colleague, Senator 
George Allen of Virginia. RADM Harry Harris, commander of the Joint 
Task Force in Guantanamo, spent most of his day giving us a very 
informative briefing and a tour of the facilities.
  I thank the admiral, and I thank all the soldiers and sailors at 
Guantanamo for their service to our country. They are great Americans 
doing a difficult job in a dangerous place.
  I met with several young men and women from Illinois. I had lunch 
with them. As I always do, I left with even greater respect for our men 
and women in uniform. They are truly our best. They deserve our 
gratitude every single day.
  I am old enough to remember the Vietnam war. It was a divisive war 
politically, and our divisions were taken out on the soldiers. That 
should never happen again. We can debate the policies of the United 
States on the floor of the Senate, but we should never debate the 
courage and commitment of our men and women in uniform. It is beyond 
reproach.
  For some time, I have been critical of the Bush administration's 
policies on interrogation and detention. I believe these policies are 
not true to American values. They have hurt our efforts in the war on 
terrorism. They put our brave men and women in uniform at even greater 
risk.
  Let me be clear. My criticism of the administration's policies does 
not reflect in any way on the fine men and women in the military. In 
fact, I think the Bush administration's policies in many case have done 
a disservice to our military. The men and women serving at Guantanamo 
have a difficult job. The administration's confusing, conflicting, and, 
according to the recent Supreme Court decision, illegal policies have 
made their job even more difficult.
  After the September 11 terrorist attacks, the Bush administration 
unilaterally decided to set aside treaties which the Senate had 
ratified and which had been followed and honored by previous 
administrations of both political parties--treaties that have served us 
well for generations.
  Alberto Gonzales, who was then White House Counsel to the President, 
recommended to him that the Geneva Conventions should not apply to the 
war on terrorism. But Colin Powell, who was then Secretary of State, 
objected to Mr. Gonzales's recommendation. He argued that we should 
comply with the Geneva Conventions and that we could do so and still 
effectively fight the war on terrorism. In a memo to White House 
Counsel Gonzales, Secretary Powell pointed out the Geneva Conventions 
do not limit our ability to hold and question a detainee. He also noted 
that the Geneva Conventions do not give Prisoner of War status to 
terrorists. That was Secretary Powell's opinion.
  In his memo, Secretary Powell went on to say that setting aside the 
Geneva Conventions:

       will reverse over a century of U.S. policy and practice . . 
     . and undermine the protections of the law of war for our own 
     troops. . . . It will undermine public support among critical 
     allies, making military cooperation more difficult to 
     sustain.

  When you look at the negative publicity about Guantanamo today, 
Secretary Colin Powell's words a few years ago were clearly prophetic.
  Unfortunately, President Bush rejected Secretary Powell's counsel and 
instead stood by White House Counsel Gonzales's conclusion. On February 
7,

[[Page 13932]]

2002, the President issued a memo dictating that the Geneva Conventions 
would not apply to the war on terrorism.
  After the President decided to ignore the Geneva Conventions, the 
administration unilaterally created its own new detention policy. They 
claimed the right to seize anyone, including an American citizen in the 
United States, and hold him until the end of the war on terrorism, 
whenever that might be.
  They claimed that Americans and others who were detained have no 
legal rights. That means no right to challenge their detention, no 
right to see the evidence against them, and no right to even know why 
they are being held.
  In August of 2002, the Justice Department issued its infamous torture 
memo. This memo narrowly redefined the meaning of torture. It said 
abuse only rises to the level of torture if it causes pain equivalent 
to organ failure or death. The memo also concluded the President had 
the authority to order the use of torture, even though torture is a 
crime under U.S. law. This became official administration policy for 
over 2 years before it was withdrawn under public pressure.
  Relying on the President's Geneva Conventions determination and the 
Justice Department's torture memo, Defense Secretary Rumsfeld approved 
numerous abusive interrogation tactics for use against prisoners in 
Guantanamo Bay, including threatening detainees with dogs and forcing 
detainees into painful stress positions for long periods of time. The 
International Committee for the Red Cross has concluded that the use of 
these techniques is torture.
  What has been the impact of the Bush administration's detention and 
interrogation policies? As a result of these policies, and despite the 
fine service of our military, Guantanamo has become a divisive, 
negative symbol of America around the world. Even Great Britain, our 
closest ally in the war on terrorism, has called for Guantanamo to be 
closed. This is what Lord Goldsmith, the Attorney General of Great 
Britain, said:

       Not only would it, in my personal opinion, be right to 
     close Guantanamo as a matter of principle, I believe it would 
     also help to remove what has become a symbol to many--right 
     or wrong--of injustice. The historic tradition of the United 
     States as a beacon of freedom, liberty, and of justice 
     deserves the removal of this symbol.

  Some people dismiss our allies' views on Guantanamo. They say it is 
up to the United States to decide how to fight terrorism and other 
countries should stay out of our business.
  Of course, we need to do whatever it takes to protect America and 
keep us safe, whatever the international criticism. But look at the 
price we are paying for these administration policies. Our closest 
allies say it is more difficult to cooperate with the United States' 
efforts in the war on terrorism. As Lord Goldsmith said, Guantanamo is 
harming the image of the United States around the world.
  It bears noting that in terms of lives committed to the cause, Great 
Britain was our strongest ally in the invasion of Iraq. Their judgment 
on Guantanamo deserves our respect.
  And it is not just foreign governments that have criticized the 
administration's policies. It is also brave Americans who are fighting 
on the frontlines in the war on terrorism.
  According to a publicly released FBI memo, at least 26 FBI agents 
have complained about abuses they witnessed at Guantanamo. According to 
the memo, during 2002 and 2003, 17 of these agents were complaining 
about ``DOD [Department of Defense] approved interrogation 
techniques.'' In other words, these FBI agents were not complaining 
about the actions of bad apples or rogue soldiers; they were 
complaining about tactics that were approved by the administration and 
were used at that time, in 2002 and 2003, at Guantanamo. The concerns 
raised by the FBI are currently under investigation by the Justice 
Department's Inspector General.
  When I raised these concerns yesterday at Guantanamo, before the men 
and women who are in charge of that facility, they understood what I 
was speaking of. They referred me to the Inspector General and said 
these matters are under investigation. One of the lead interrogators 
drew me aside and said privately to me: I don't want to ever be part of 
that kind of conduct. I believe him, and I respect him for what he 
said.
  In addition to FBI agents, several military lawyers, known as Judge 
Advocate Generals, have also raised serious concerns about 
administration policies. Their concerns are found in the so-called JAG 
memos which have been made public. For instance, Major General Jack 
Rives in February 2003 said:

       We have taken the legal and moral ``high road'' in the 
     conduct of our military operations regardless of how others 
     may operate. Our forces are trained in this legal and moral 
     mindset beginning the day they enter active duty . . . We 
     need to consider the overall impact of approving extreme 
     interrogation techniques as giving official approval and 
     legal sanction to the application of interrogation techniques 
     that U.S. forces have consistently been trained are unlawful.

  Of course, the Supreme Court has weighed in now. In 2004, in two 
landmark decisions, the Supreme Court rejected the administration's 
detention policies. The Court held, as Justice Sandra Day O'Connor 
famously wrote for the majority in the Hamdi case:

       A state of war is not a blank check for the President when 
     it comes to the rights of the Nation's citizens.

  Unfortunately, the administration continued to implement policies for 
the treatment of detainees that violate the Constitution, treaties, and 
laws of the United States.
  Two weeks ago in the Hamdan decision, the Supreme Court again 
rejected the administration's policies. The Court held that the 
Administration's military commissions are illegal and that the 
President is required to comply with the Uniform Code of Military 
Justice and the Geneva Conventions. The Supreme Court reminded the 
President that no man is above the law, even during a war.
  In my estimation, the fine men and women at Guantanamo are working 
hard to overcome the damage done by the Administration's policies. For 
example, they no longer use abusive interrogation techniques that the 
administration approved. In fact, as the chief interrogator told me 
yesterday, the techniques currently being used at Guantanamo comply 
with the Geneva Conventions. He said the Geneva Conventions provide 
sufficient flexibility to interrogate detainees effectively.
  I asked the chief interrogator yesterday in Cuba at Guantanamo: If 
you were told today that you had to follow the Geneva Conventions in 
the way that you interrogate all of the detainees at Guantanamo, what 
would you have to change? He said: Nothing. I said: Do you follow the 
McCain torture amendment which passed the Senate 90 to 9? He said: We 
do.
  So to argue that respecting the Geneva Conventions would in any way 
diminish our ability to interrogate these detainees is not right, at 
least not in the mind of our chief interrogator at Guantanamo. This is 
what Secretary of State Colin Powell told the President 4 years ago. I 
wish the President had followed his counsel.
  According to a report in this morning's Financial Times, in response 
to the Hamdan decision, the Defense Department has finally acknowledged 
that Common Article 3 of the Geneva Conventions applies to all 
detainees in U.S. military custody. If this is true, it is a belated 
but necessary and welcome step in the right direction.
  Our troops at Guantanamo are doing their best, but they have a heavy 
burden to carry. Every day they wake up, put on their uniforms and face 
the challenges of performing a very difficult job. Now they face the 
added burden of attempting to rehabilitate the image of Guantanamo.
  Our young soldiers and sailors should not have to carry that burden 
alone. It is long past time for Congress to help. Congress must ask: 
Have we given our troops an impossible task?
  I have come to the difficult conclusion that it is time to close 
Guantanamo. We should immediately begin phasing out the detention and 
interrogation operations at Guantanamo Bay, with the goal of closing 
the Guantanamo detention facilities before the

[[Page 13933]]

end of this calendar year. Even President Bush has acknowledged that 
Guantanamo should be closed. Despite the valiant efforts of our troops, 
Guantanamo has become a powerful, negative symbol around the world for 
the failures of this administration.
  As Admiral Harris told me yesterday, many of the detainees can be 
charged, transferred to other countries, or released. In addition, 
there may be a continuing need to detain a small number of individuals 
who cannot be charged with a crime, but who still pose a danger to our 
country. I do not believe that we should release anyone who is a danger 
to our country or a danger to our troops. It is right that we hold 
them, if they are such a danger, in the appropriate legal fashion.
  Of course, closing Guantanamo is just the beginning of this process. 
There are still many serious flaws in the administration's 
interrogation and detention policies. An example is the signing 
statement the President added to the McCain torture amendment last 
year, which still raises questions about what the intent of the 
administration is when it comes to torture. The Senate spoke 90 to 9 in 
a bipartisan fashion. I was proud to be a cosponsor of the McCain 
amendment, which said that we will not engage in torture, cruel, 
inhuman or degrading treatment of prisoners. That should be a clear 
standard for the United States to follow unequivocally.
  The Supreme Court, 2 weeks ago, made it clear: We are a Nation of 
laws, even during a war. No person in America is above the law, 
including the President.
  It is time for Congress to make it clear to the President that he is 
bound by the treaties we ratify and the laws we pass, whether it is the 
Geneva Conventions, the Uniform Code of Military Justice or the McCain 
torture amendment.
  It is time for us to fulfill our constitutional responsibilities. Our 
brave men and women in uniform are doing their job. Now it is time for 
Congress to do its job.
  Mr. President, this trip yesterday was an important trip for me, 
personally, to see Guantanamo firsthand and to meet the men and women 
who are doing such a great job for our country. My heart goes out to 
them because I know the sacrifice they are making to serve our Nation. 
My heart goes out to them as well because, for the last several years, 
they have been given conflicting messages and conflicting policies from 
this administration. These men and women in uniform are trained to 
follow the rule of law and the Geneva Conventions and the Uniform Code 
of Military Justice, but the conflicting policies of this 
administration on torture and detention have created an atmosphere 
which is unfair to the troops and inconsistent with the values of 
America.
  It is clear now that we must close Guantanamo. It has become a 
negative symbol of the United States around the world. We must transfer 
those prisoners to new facilities to signal to the world that the 
decision of the Supreme Court has charted a new course and a new 
direction for America, that we have received this message and we must 
move forward, and we must make it clear to the world that despite the 
threat of terrorism, the United States will still follow the rule of 
law, we will follow the Geneva Conventions, we will follow the Uniform 
Code of Military Justice, and we will follow the bipartisan McCain 
torture amendment. We must make it clear that we will keep America 
safe, and we will also protect our values in the process.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT Pro Tempore. The minority's time has expired.
  The Senator from Colorado is recognized.

                          ____________________